Abstract

Footnotes (111)

Using the URL or DOI link below will
ensure access to this page indefinitely

Based on your IP address, your paper is being delivered by:

New York, USA

Processing request.

Illinois, USA

Processing request.

Brussels, Belgium

Processing request.

Seoul, Korea

Processing request.

California, USA

Processing request.

If you have any problems downloading this paper,please click on another Download Location above, or view our FAQFile name: SSRN-id824228. ; Size: 170K

You will receive a perfect bound, 8.5 x 11 inch, black and white printed copy of this PDF document with a glossy color cover. Currently shipping to U.S. addresses only. Your order will ship within 3 business days. For more details, view our FAQ.

Quantity:Total Price = $9.99 plus shipping (U.S. Only)

If you have any problems with this purchase, please contact us for assistance by email: Support@SSRN.com or by phone: 877-SSRNHelp (877 777 6435) in the United States, or +1 585 442 8170 outside of the United States. We are open Monday through Friday between the hours of 8:30AM and 6:00PM, United States Eastern.

In Roberts v. United States Jaycees, the Supreme Court reversed Judge Richard S. Arnold's decision for the Court of Appeals and held­ - without dissent - that the First Amendment did not shield the Jaycees' men-only membership policy from the non-discrimination requirements of the Minnesota Human Rights Act. The claim in this essay is that Judge Arnold's position and decision in the Jaycees case deserved, and still deserve, more thoughtful and sympathetic treatment. Even some of Judge Arnold's many friends and fans tend to treat as something of an embarrassing lapse or anomalous error his conclusion in that case that, because "the First Amendment . . . must[,] on occasion, protect the association of which we disapprove, the Constitution therefore protected the Jaycees' right not to admit women to full membership".

In fact, though, it was precisely Judge Arnold's civil-libertarian commitments prompted him to cast a skeptical eye on the efforts of government to pursue its own or the majority's agenda at the expense of constitutionally protected rights. For Judge Arnold, governments constrained by our First Amendment and by a respect for the freedom of speech are limited to persuasion, not coercion, when trying to influence and shape the beliefs and expression of citizens and associations. In his view, the same democratic values that underlie our constitutional commitment to equal protection of the laws are the basis for a no-less-fundamental commitment to limited government and a free civil society.

Justice Brennan himself - the author of the Court's opinion in Jaycees and Judge Arnold's former boss - recognized that Judge Arnold has consistently vindicated the First Amendment guarantees of freedom of the press and freedom of speech, even in cases in which the protected expression was controversial, distasteful, or hateful. Judge Arnold's ruling and reasoning in Jaycees, it seems to me, is of a piece with this commendable legacy.